#### John G. Barnes v. Edwin C. Johnson.

Monet had and received—when action lies. The action for money had and received is an equitable action, and lies wjierever one party has obtained money which, in equity and good conscience, he ought not to he permitted to retain.

Appeal from the Circuit Court of Warren county; the Hon. Arthur A. Smith, Judge, presiding.

Messrs. Marshall & Sterrett, for the appellant.

Messrs. Stewart & Phelps, for the appellee.

Mr. Justice Scott

delivered the opinion of the Court:

Although the evidence is not entirely satisfactory, still it is sufficient to justify the finding defendant let to rent the entire building, as well that part which belonged to plaintiff as that which belonged to himself, and, having received rents from the occupying tenants that belonged to plaintiff, there is no reason why he should not recover.

The action for money had and received is an equitable action, and lies wherever one party has obtained money which, *96in equity and good conscience, he ought not to be permitted to retain. That is this exact case. Bents received by defendant from the tenants rightfully belonged to plaintiff—at least the jury have so found; and if so, it would be inequitable to permit defendánt to retain money that of right belongs to plaintiff.

It may be that all the instructions given for plaintiff are not strictly correct. Slight errors, on a severe criticism, may, no doubt, be detected; but, then, the instructions' given for defendant were so favorable to his theory of the case, we can not believe the jury were misled.

Substantial justice has been done, and the judgment will be affirmed.

Judgment affirmed.